A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe. Ripe, that is, for problems to occur and, generally, for matters to get worse. The file gets avoided more and more. Here we look at practical solutions to deal with a problem that virtually every litigator has. A failure to realise this, to face up to it, and to have strategies in place to deal with these issues underlies a surprising number of cases with “Mitchell”/”sanction” type problems.

FISH FILES ARE AN INTERNATIONAL PROBLEM

Fish files feature several times in John Grisham’s work. He even wrote a short story about a lawyer’s issues with fish files.

THE CONSEQUENCE OF NOT DEALING WITH FISH FILES

This is actually a very serious problem. Procrastination can lead to depression which, in turn can lead to other problems.

The crucial thing is to realise that this is a universal problem. Every lawyer has one of these files (I often ask at lectures and, over the years, only one person has said they did not [his colleagues later cast much doubt on this]). Further there is plenty of material out there (a lot of it American) which can usefully be adapted. Here I have some links to useful on-line guides.

AREN’T WE A LONG WAY AWAY FROM CIVIL PROCEDURE?

But we are bang on the money in relation to the cause of so many cases being subject to sanctions. It is not lack of knowledge or ability that causes many procedural problems but a failure to get to grips with the issues in the case, or a failure to deal with the case itself because it (or a specific issue in the case) has become a “fish file”.

WHAT IS TO BE DONE?

Every litigator is working under much more stress in the post-Mitchell world. Many of the reported cases on sanctions are clearly due to procrastination. This has to be recognised as an issue and dealt with. There is no point denying that these problems exist. There are methods of addressing these issues. If these problems are not dealt with and recognised then time limits will be missed and sanctions will inevitably follow. This is not a subject that can be put to one side to be dealt with later.